Aspen Highlands Skiing Corp. v. Apostolou
18 Brief Times Rptr. 136, 1994 Colo. LEXIS 70, 866 P.2d 1384 (1994)
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Rule of Law:
A person who works as a ski patroller is not a "volunteer" excluded from workers’ compensation coverage when they specifically negotiate for valuable, non-monetary compensation in return for their services and would not have performed the work without this bargained-for exchange. Such an arrangement creates a "contract of hire," making the person an employee under the Workers' Compensation Act.
Facts:
- John J. Apostolou was employed by Aspen Highlands Skiing Corporation (Highlands) as a part-time ski instructor and received a photo ID for free skiing as part of his compensation.
- Highlands solicited ski instructors with CPR and first aid training to work on the ski patrol, which included unpaid positions that received a photo ID pass.
- Because he already had a photo ID, Apostolou negotiated a separate agreement to work on the ski patrol specifically in exchange for daily ski passes for his girlfriend.
- Each daily pass had a retail value of $36.00.
- Apostolou would not have agreed to perform ski patrol duties if Highlands had not agreed to provide the ski passes for his girlfriend.
- On February 20, 1990, while on ski patrol duty under this agreement, Apostolou fell and severely injured his knees.
Procedural Posture:
- John J. Apostolou filed a workers’ compensation claim against Aspen Highlands Skiing Corporation (Highlands).
- An Administrative Law Judge (ALJ), the court of first instance, concluded that Apostolou was an employee and ordered Highlands to provide compensation.
- Highlands, as appellant, appealed to the Industrial Claim Appeals Panel.
- The Industrial Claim Appeals Panel, an intermediate administrative appellate body, affirmed the ALJ's order.
- Highlands, as appellant, appealed to the Colorado Court of Appeals, an intermediate state appellate court.
- The Colorado Court of Appeals affirmed the Panel's order, with one judge dissenting.
- The Colorado Supreme Court granted certiorari to review the decision of the Court of Appeals.
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Issue:
Does a ski patrol worker who specifically negotiates for and receives non-monetary compensation in the form of ski passes for a third party, and who would not have worked otherwise, qualify as a 'person who volunteers his time or services' under a statute that excludes such volunteers from workers’ compensation benefits?
Opinions:
Majority - Justice Lohr
No, a ski patrol worker under these circumstances does not qualify as a person who volunteers his services and is therefore not excluded from workers' compensation benefits. A contract of hire existed between Apostolou and Highlands, making him an employee under the Act. The court's reasoning is threefold. First, the arrangement met all the essential elements of a contract: competent parties, subject matter, legal consideration (the girlfriend's ski passes), mutuality of agreement, and mutuality of obligation. Second, the court rejected Highlands' argument that a 'contract of hire' must include the payment of 'wages' as defined elsewhere in the Act, noting that the definition of 'employee' does not contain the word 'wages' and the 'wages' definition is for calculating benefit amounts, not determining status. Third, Apostolou did not meet the common definition of a 'volunteer'—one who provides services without an express or implied promise of remuneration—because he specifically bargained for compensation and would not have worked without it, creating a quid-pro-quo relationship.
Dissenting - Justice Vollack
Yes, a ski patrol worker under these circumstances does qualify as a volunteer who is statutorily excluded from benefits. The statutory language excluding volunteer ski patrollers is clear and unambiguous. The dissent argues that it is common industry practice for volunteer ski patrollers to receive ski passes as their only recompense, and the legislature must have intended to include these individuals within the 'volunteer' exclusion. The majority's focus on the 'bargaining' aspect of the transaction creates a nebulous and unworkable distinction, as many volunteer arrangements involve some form of negotiation. In substance, Apostolou received the same type of benefit as other volunteers, and the fact that he negotiated for it should not be sufficient to convert his status from volunteer to employee.
Analysis:
This decision clarifies the distinction between a statutory 'volunteer' and an 'employee' under the Colorado Workers' Compensation Act, particularly in industries reliant on non-salaried labor. The court established that the existence of a specific, bargained-for exchange for valuable consideration is the critical factor in forming a 'contract of hire,' regardless of whether the compensation is monetary. This holding narrows the scope of the statutory exclusion for volunteer ski patrollers, signaling that employers cannot classify workers as volunteers to avoid liability if they have created specific, quid-pro-quo arrangements for benefits. The case emphasizes the substance of the relationship—mutual obligation and bargained-for exchange—over the form of compensation.
